Fifth and Sixth schedule of Constitution of India : A comparative analysis
- Part 1 -

Dr Th Siamkhum *

I. Introduction:

The Government of India, after independence, decided to replace the British colonial policy of isolation and non-interference in the affairs of tribal people of North-East India (Assam) by a policy of integration and development. The framers of the Constitution, the Constituent Assembly, keeping in mind the special needs of these numerous ethnic groups, each having distinct ethnic, cultural and traditional identities, framed the most comprehensive, and the most elaborate Democratic Constitution with Federal Character, providing special safeguard to the custom, tradition, culture, language and, above all, their land.

A part from these protective provisions, provisions are also made in the Constitution for the socio-economic, political and educational upliftment of these primitive indigenous tribes of the region (North-East).Special provisions, in the form of reservation of seats in the State Legislature, reservation of seats in government jobsand educational institutions run and maintained by the State and Central Government. The Constitution also made special protective provisions in the form of Fifth Schedule, Sixth Schedule, Scheduled Areas and Scheduled Tribes.

The Present discourse, therefore, is to discuss and analyse the constitutional framework and provisions under which Autonomous District Councils are created.

II. Constitutional Provisions of Fifth Scheduled of the Constitution

(i) Scheduled Areas: Meaning

People of North-East India, it is believed, are well familiar with the words, Scheduled Tribes andScheduled Areas, but very few exceptional people really know the constitutional meaning of Scheduled Areas, Scheduled Tribes, etc.

The Constitution of India, under Part C of the Fifth Schedule, providesi) Scheduled Areas means such areas as the President may by order declare to be Scheduled Areas, ii) the President, may at anytime, by order-

a) direct the whole or any specified part of a scheduled area shall cease to be a Scheduled Area or a part of such an area;

a)(i) increase the area of any Schedule Area in a State after consultation with the Governor of the State;

b) alter, but only by way of rectification of boundaries,

c) on any alteration of boundaries of a state or on the admission into the Union or establishment of a new State, declare any territory not previously included in any State to be, or to form part of a Scheduled Area;

d) rescind, in relation to any State or States, any order or orders, made under this paragraph and in consultation with the Governors of the State concerned, makes fresh orders redefining the areas which are to be Scheduled Areas and, any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph(i) of this paragraph shall not be varied by any subsequent order.

The Constitutional implication of the Scheduled Area, as mentioned above is that the President (Parliament) is the authority to create or make any area as a Scheduled Area. At the same time, it is the President who has the power to declare a Scheduled Area or part of a Scheduled Area as a non-scheduled area. Also, it is to be noted that under certain circumstances, the President is obliged to consult the Governor of the concerned State of the Scheduled Area.

III. The Fifth Schedule: The Constitutional Provisions.

Part A

1. Interpretation: In this Scheduled, unless the context otherwise requires, the expression “State” does not include the ‘States of Assam, Meghalaya, Tripura and Mizoram.’

2. Executive Power of a State in Scheduled Areas – Subject to the provisions of this Schedule, the executive power of a state extends to the Scheduled Areas therein.

3. Report by the Governor to the President regarding the administration of the Scheduled Areas: The Governor of each state having Scheduled Areas therein, shall annually or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in the state and the executive power of the Union shall extend to the Schedule Areas or the concerned state shall exercise its executive power over the Schedule Areas of the State. Another important implication of Part A of Fifth Schedule is that it is mandatory for State to give to the President an annual report about the progress and development of Scheduled Areas of the State or the State Government through the Governor, is required to give a report on the above matter as and when asked to do so by the President.

PART B

Administration and Control of Scheduled Areas and Scheduled Tribes

4. Tribes Advisory Council:

i) There shall be established in each state having scheduled areas therein and, if the President so direct, also in any state having Scheduled Tribes, but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom as nearly as may be, three-fourth shall be the representatives of Scheduled Tribes in the Legislative Assembly of the State; provided that if the number of representative of the Scheduled Tribes in the State Legislative Assembly of the State is less that the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes.

ii) It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor.

iii) The Governor may by make rules prescribing or regulating as the case may be,

a) the number of members of the Council, the mode of their appointment and the appointment of Chairman of the Council and officers and servants thereof.

b) the conduct of its meetings and its procedure in general; and

c) all other incidental matters.

To be continued..